Appeal
from an order of the Supreme Court (Gilpatric, J.), entered
November 9, 2016 in Ulster County, which granted certain
defendants' motions for summary judgment dismissing the
complaint against them.

Plaintiff
was wearing an ankle-length brown skirt with a knee-length
white dress over it as she briefly warmed herself by an
unvented propane heater. Her clothing caught fire and she
suffered injuries. Plaintiff commenced two actions, now
consolidated, against, among others, the corporations that
allegedly sold the white dress that plaintiff was wearing
(defendants Wal-Mart East, LP, Wal-Mart Stores East, Inc.,
Wal-Mart Stores, Inc. and Wal-Mart Associates [hereinafter
collectively referred to as the Wal-Mart defendants]),
distributed the dress (defendant At Last Sportswear, Inc.)
and manufactured, designed and distributed the heater
(defendants Mr. Heater Corporation, Enerco Group, Inc. and
Tractor Supply Company [hereinafter collectively referred to
as the Enerco defendants]). Following discovery, At Last
Sportswear and the Wal-Mart defendants moved for summary
judgment dismissing the complaint and any cross claims
asserted against them contending, among other things, that
the dress was not defective, that it did not need a warning
label and that any alleged defect did not proximately cause
plaintiff's injuries. Plaintiff did not oppose the
motions; only the Enerco defendants did. Supreme Court
granted the motions. The Enerco defendants appeal.

Contrary
to the arguments of the Wal-Mart defendants, the Enerco
defendants were entitled to bring this appeal because they
were aggrieved by Supreme Court's order (see
CPLR 5511). Pursuant to CPLR 1601 (1), when a verdict in a
personal injury action determines that two or more
tortfeasors are jointly liable and a defendant is found to be
responsible for 50% or less of the total liability, that
defendant will not be required to pay the claimant for more
than that defendant's share of the noneconomic loss
(see Rangolan v County of Nassau, 96 N.Y.2d 42, 46
[2001]). CPLR article 16 applies automatically, even if a
defendant does not plead it as an affirmative defense, though
the Enerco defendants did raise this defense in their answer
(see CPLR 1601 [1]; Cooper v Burt's
Reliable, Inc., 105 A.D.3d 886, 888 [2013]; Marsala
v Weinraub, 208 A.D.2d 689, 690 [1994]) [1]. Although
liability can be apportioned between any tortfeasors, whether
they are codefendants or nonparties, if an alleged tortfeasor
was a codefendant whom the court had dismissed from the case,
the law of the case doctrine would preclude the remaining
defendants from introducing at trial any evidence regarding
the same type of defect or error by that alleged tortfeasor
that was previously litigated (see Carmona v
Mathisson, 92 A.D.3d 492, 492-493 [2012]). Thus, the
Enerco defendants were entitled to challenge motions by any
codefendants seeking to be released from the action, they
were aggrieved by any orders granting dismissal and they
could, therefore, appeal any such orders.

Supreme
Court erred in granting the motions by At Last Sportswear and
the Wal-Mart defendants for summary judgment dismissing the
causes of action alleging that the white dress was
defectively designed. To begin, viewing the evidence in the
light most favorable to the nonmoving parties and granting
them every favorable inference to be drawn from the evidence
(see Dann v Family Sports Complex, Inc. 123 A.D.3d
1177, 1179 [2014]), there is a factual question as to which
garment caught fire first. The record evidence also raises
questions regarding whether the dress contained any design
defects. Generally, a jury should determine from all of the
evidence whether a product is defectively designed (see
Hoover v New Holland N. Am., Inc., 23 N.Y.3d 41, 54
[2014]). Here, the moving defendants initially established
their prima facie entitlement to summary judgment. Their
expert opined that the dress materials complied with and
exceeded the requirements of the Federal Flammable Fabrics
Act (15 USC § 1191 et seq. [hereinafter FFA])
and accompanying regulations (16 CFR part 1610) for general
wearing apparel, as well as the industry standard, that the
dress was reasonably safe and suitable for its intended use,
that it was not defective in any manner and that this type of
100% cotton dress was a standard commodity. While we
acknowledge that compliance with the FFA standards "is
merely some evidence of due care and does not preclude a
finding of negligence" (Mercogliano v Sears, Roebuck
& Co., 303 A.D.2d 566, 566 [2003]; see Palmatier
v Mr. Heater Corp., 156 A.D.3d 1178, 1180 [2017];
Feiner v Calvin Klein, Ltd., 157 A.D.2d 501, 502
[1990]; Sherman v Lowenstein & Sons, 28 A.D.2d
922, 922 [1967]; but see Spiconardi v Macy's E.,
Inc., 83 A.D.3d 472, 473 [2011]), the moving
defendants' expert based his opinion that the dress was
not defective on his 45 years of experience in the industry,
not just on the FFA testing.

In
response, the Enerco defendants submitted an affidavit from
their own expert, who opined that the FFA standards are
insufficient to determine whether a garment is safe because
it addresses only some factors affecting flammability of the
fabric but not the design of the garment itself (see Vail
v KMart Corp., 25 A.D.3d 549, 550 [2006]). He supported
his opinion with literature in which industry professionals
addressed the inadequacy of the FFA standards to protect
consumers. These competing expert opinions present a triable
issue of fact regarding whether a design defect exists
(see Terwilliger v Max Co., Ltd., 137 A.D.3d 1699,
1702 [2016]; Barclay v Techno-Design, Inc., 129
A.D.3d 1177, 1180 [2015]; Steuhl v Home Therapy Equip.,
Inc., 51 A.D.3d 1101, 1104 [2008]).

The
record also presents a triable question of fact as to whether
At Last Sportswear and the Wal-Mart defendants breached a
duty to warn of the dress's flammability. A manufacturer,
distributor or seller generally has a duty to warn against
latent dangers associated with the use of its product that
were or should have been known (see Barclay v
Techno-Design, Inc., 129 A.D.3d at 1180). This duty does
not apply if the product is patently dangerous or presents
open and obvious risks (see id.). Similarly, the
failure to warn could not be a proximate cause of a
plaintiff's injury if the plaintiff had actual knowledge
of the injury-producing hazard or chose to ignore all
warnings (see id.; Steuhl v Home Therapy Equip.,
Inc., 51 A.D.3d at 1103). The parties' experts
disagreed as to whether labels warning about the dress's
flammability and the need to be cautious around heat sources
were appropriate for such general wearing apparel and existed
in the United States market for this type of garment. Thus,
factual issues remain regarding whether At Last Sportswear
and the Wal-Mart defendants breached a duty to warn.

At Last
Sportswear and the Wal-Mart defendants argue that the lack of
warning labels could not have been a proximate cause of
plaintiff's injuries. Plaintiff's testimony that she
did not typically look at clothing labels before buying or
laundering garments was not definitive proof that she never
looks at labels. She also testified that she
"[p]ossibly" would have changed her behavior on the
day of the incident if her clothing had warnings regarding
flammability or to stay away from high heat. Furthermore,
plaintiff's general awareness that clothing can catch
fire and that some fabrics ...

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